Berkeley County company wins lawsuit against planning commission

August 25, 2012|By MATTHEW UMSTEAD | matthew.umstead@herald-mail.com

MARTINSBURG, W.Va. — A 23rd Judicial Circuit judge has vacated a September 2011 Berkeley County Planning Commission order that attempted to compel a company to submit a site plan for an existing operation.

Judge Christopher C. Wilkes ruled that the planning commission is prohibited from requiring L&H Mobile Storage LLC to submit a site-plan application or follow other procedural requirements for certain development at 615 Pack Horse Ford Road, according to the order filed Aug. 14.

L&H Mobile Storage still must follow all laws and regulations for any new construction involving land disturbance that was not contemplated in a 2004 lawsuit involving the property, Wilkes ruled in issuing two writs favoring the company.

Norwood Bentley III, planning commission legal counsel, said last week that Wilkes’ decision did not come as a surprise.

Attorney Richard G. Gay, who filed the lawsuit Oct. 19 on behalf of L&H Mobile Storage LLC and C. Lee Ridgely, the owner of property, alleged the planning commission’s order was in direct violation of prior court orders and constituted a “collateral attack.”

The suit contended the planning commission essentially was using the county’s planning ordinance as a zoning ordinance by ordering a site plan and forcing the business to adhere to regulations adopted in 2004 that would eliminate the business use of the property because Pack Horse Ford Road is not 40 feet wide. The road width is required for such a property under the 2004 regulations, according to the lawsuit.

In 2007, an agreed order signed by 23rd Judicial Circuit Judge David H. Sanders said Ridgely ultimately complied with the “procedural requirements” of the planning commission and provided a stormwater plan that was deemed to be acceptable to the county engineering department, according to the lawsuit.

The order dismissed a lawsuit that was filed in 2004 by the county concerning Ridgely’s compliance with stormwater planning and compliance with land-development unit regulations for commercial property, according to court documents.

In 2008, Wilkes signed an order approving a “global” settlement agreement concerning the placement of storage containers by the company at six locations, including the Pack Horse Ford Road property.

The agreement was meant to abandon the appeal of a legal issue in that case “in exchange for a settlement of all of the issues between the parties,” according to the court order.